Volunteers & the lawVolunteers & the lawMoorhead James LLP (Solicitors)

Kildare House

3 Dorset Rise

London EC4Y 8EN

Tel: 020 7831 8888

Fax: 020 7936 3635

www.moorheadjames.com

Presented by Edward Wheen, Partner & Sam Murray-Hinde, Associate

A volunteer is:

“a person engaged in an activity which involves spending time, unpaid (except for travel and other out of pocket expenses), doing something which aims to benefit some third party other than or in addition to a close relative.”

The Police Act 1997 (Criminal Records) Regulations 2002

Volunteers – Who are they?

Volunteering is:

“an activity that involves spending time, unpaid, doing something that aims to benefit the environment or individuals or groups other than (or in addition to) close relatives.”

The Manifesto for Change / The Compact Code of Good Practice on Volunteering

Volunteers – Who are they?

Employment law gives protection to:

(1) employees;(2) workers; and(3) a wider class of individuals who are

protected from discrimination under the Equality Act 2010

Volunteers – What are they not?

An employee is:

“an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment.”

S.230(1) Employment Rights Act 1996

Volunteers – What are they not?

A contract of employment is:

“a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.”

S.230(2) Employment Rights Act 1996

Volunteers – What are they not?

A worker is:

“an individual who works under a contract of employment or any other contract, whether express or implied, who undertakes to do or provide personally any work or services for another party to the contract, where that other party is not a client or customer of any profession or business undertaking carried on by the individual.”

s.230(3) Employment Rights Act 1996

Volunteers – What are they not?

Internships

Work experience placements

Volunteers – What are they not?

If found to be an employee or worker, an individual is entitled to be paid the National Minimum Wage.

Avoid giving any monetary payment or benefit in kind other than reimbursement of genuine expenses.

The National Minimum Wage

Avoid giving individuals a contract of employment. A contract can be oral or in writing. Constituents leading to a contract of employment:

(1) offer;(2) acceptance;(3) consideration;(4) intention to create legal relations; and(5) certainty of terms

How to avoid giving volunteers rights

Avoid paying anything but genuine expenses. Avoid rewards and gifts, unless it is a genuine

honorarium with no obligation and of small value. Provide only training which is necessary for the

individual to perform their duties. Provision of uniform and equipment should only be

that which is required for the role. Avoid providing free entrance to events save where

necessary to carry out the role.

How to avoid giving volunteers rights

Volunteer agreements:

(1) used to set out the parties’ intentions and reasonable expectations;

(2) non-legalistic, short and sweet; and

(3) non-contractual language.

Equal opportunities:

Discrimination law does not extend to volunteers.

Good practice to apply the principles of fairtreatment in any event.

Policies:

(1) informal;(2) separate from those applied to workers and employees;(3) used to address and resolve issues at an

early stage.

Age Foreigners Those in receipt of state benefits Paid staff Those with criminal records

Rehabilitation of Offenders Act 1974 – spent and unspent convictions;

Exemptions Order to the Rehabilitation of Offenders Act – ‘regular contact with children and vulnerable adults’.

Protection of Freedoms Act 2012. CRB and ISA now merged to form Disclosure and

Barring Service (“DBS”). In deciding whether to obtain a DBS check:

Properly evaluate the risks – is the volunteering in a ‘regulated’ setting involving regular contact with children or vulnerable adults?

New narrowed definition of ‘regulated activity’ – separate definitions for children and for vulnerable adults.

For children, activity must be of particular type and unless it relates to the provision of personal care and health care (which are automatically regulated), it must be carried out with a degree of frequency.

For vulnerable adults, the activity need only be carried out once.

Types of check:

(1) Basic – only available to individuals;(2) Standard – only available in respect of

excepted posts;(3) Enhanced with a barred list check – only

available in respect of excepted posts and the position must meet the new definition of ‘regulated activity’.

Moorhead James LLP (Solicitors)

Kildare House

3 Dorset Rise

London EC4Y 8EN

Tel: 020 7831 8888

Fax: 020 7936 3635

www.moorheadjames.com

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